FEC Updates Rules in Response to Citizens United and McCutcheon, Approves Request on Presidential Nominating Conventions

At today’s public meeting, the FEC updated its rules in response to the Supreme Court decisions in Citizens United v. FEC and McCutcheon v. FEC, and approved an advisory opinion allowing the Democratic and Republican national party committees to establish separate committees to raise convention funds under a separate contribution limit.

While the decision in Citizens United, which allowed corporations, unions, and associations to spend unlimited amounts in elections, was handed down nearly five years ago, the Commission had yet to update its rules to conform to the decision. The delay was caused by a divide between the Democratic- and Republican-appointed Commissioners over whether updates to the rules should include provisions on the disclosure of campaign spending. Commissioners Walther and Weintraub argued that any new rules should address the disclosure issue; Vice-Chair Ravel, however, joined the Republican Commissioners in voting to update the rules, giving the Commission the four votes it needed to proceed.

Commissioner Weintraub was vocal in her opposition to the new rule, arguing that the Commission was “falling down on the job” by not requiring disclosure of all political expenditures. She said the Commission was “rigging the game” to prevent new disclosure regulations. Weintraub also brought up a list of other items on which she sought Commission regulatory action, including the ban on contributions from foreign nationals, coercion of employees and union members, and corporate facilitation rules.

In addition to the rules in response to Citizens United, the Commission unanimously approved rules implementing the Supreme Court’s decision in McCutcheon v. FEC, which invalidated the law’s aggregate limits on contributions from individual donors. The interim final rule would remove the invalidated cap on individual contributions from the Commission’s existing regulations.

The Commission also adopted an advanced notice of proposed rulemaking (ANPRM) on McCutcheon and announced that it will hold a hearing on February 11, 2015. The subjects to be discussed include potential changes in disclosure rules, earmarking, and rules for political action committees and joint fundraising committees. The ANPRM also asked for comments on the agency’s presentation of campaign finance data.

After debating the Citizens United and McCutcheon rules, the Commission turned to a joint advisory opinion request from the Democratic and Republican national party committees. Perkins Coie’s Bob Bauer and Graham Wilson represented the DNC in the request. The parties filed the request after Congress passed a law stripping the presidential nominating conventions of their public funding. To make up the shortfall, the parties proposed to create separate committees, subject to the amount limitations and source restrictions, that would raise funds to finance the conventions. The Commission granted the request by a 4-2 vote. Commissioners Weintraub and Walther voted against the proposal, arguing that the matter would be better addressed through rulemaking.

Last, the Commission briefly discussed two identical advisory opinion requests from David Brat and Jack Trammell. Brat and Trammell are both candidates for Virginia’s 7th Congressional District seat, which Eric Cantor resigned in August after losing to Brat in the primary election. Both Brat and Trammell are professors at Randolph-Macon College, and both sought to continue receiving benefits from the college while taking a leave of absence to run for Congress. The Commission appeared poised to approve the requests, but the meeting was cut short when Vice-Chair Ravel had to leave to catch a flight.

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About This Blog

In the Arena: Law & Politics Update offers readers news and analysis on a wide range of topics related to the laws that regulate and affect political activity. Attorneys in Perkins Coie’s nationally recognized Political Law practice will provide insight and guidance on legal developments involving campaign finance, lobbying, the Federal Election Commission, and other topics of interest to those active in the political process. The blog’s current contributing authors include Brian Svoboda and Jonathan Berkon, as well as others in the Perkins Coie Political Law Group.

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About This Blog

In the Arena: Law & Politics Update offers readers news and analysis on a wide range of topics related to the laws that regulate and affect political activity. Attorneys in Perkins Coie’s nationally recognized Political Law practice will provide insight and guidance on legal developments involving campaign finance, lobbying, the Federal Election Commission, and other topics of interest to those active in the political process. The blog’s current contributing authors include Brian Svoboda and Jonathan Berkon, as well as others in the Perkins Coie Political Law Group.